Illinois Federal Court Solves The Mystery of The Sherlock Holmes Copyright
by Jerry Glover
May 12, 2014
An Illinois federal district court has ruled that certain aspects of the Sherlock Holmes literary properties are still protected by copyright while acknowledging that other aspects are in the public domain and not so protected. Klinger v. Conan Doyle Estate, Ltd., 2013 WL 8624923 (N.D.. Ill. December 23, 2013).
The plaintiff, a writer, had plans to write “In the Company of Sherlock Holmes”, a collection of new short stories featuring various characters and story elements from the Sherlock Holmes literature. Conan Doyle, the company representing the intellectual property rights owned by the estate of Sir Arthur Conan Doyle, insisted that the plaintiff obtain a license from the company before publishing the short story collection. The plaintiff did not believe it was required to obtain permission to use certain elements of the Sherlock Holmes literary works.
There are four novels and fifty-six short stories by Sir Arthur Conan Doyle that feature Sherlock Holmes and his sidekick, Dr. John Watson. The novels and 46 of the short stories were published prior to January 1, 1923 (under U.S. copyright law, any copyrightable material published before that date is, with few exceptions, in the public domain). The parties agreed that these works are in the public domain (some press reports about this case claim that the judge ruled that the novels and 46 short stories were in the public domain; he didn’t rule on the copyright status of these works because the parties agreed they were in the public domain). The remaining ten short stories, however, were published after January 1, 1923 and are still protected by United States copyright.
The court noted that the plaintiff could use the pre-1923 Holmes/Watson story elements without license. But the court stated that for works created after 1923 it had to determine whether any story elements in those post-1923 works constituted what the court called “increments of expression” which were protected by copyright or whether those story elements were non-copyrightable events, plots and/or ideas.
Conan Doyle argued that the court’s approach would lead to a public domain version of Doyle’s characters and a copyrighted version of those same characters. The court noted, however, that this result is precisely what the requirements of U.S. copyright law can lead to. The court pointed to an earlier decision from the U.S. Court of Appeals for the Second Circuit concerning the radio series “Amos ‘n Andy.” The copyright in scripts for the series written before 1948 had not been renewed and were, therefore, in the public domain. But the Second Circuit noted that for scripts written after that date which contained “increments of expression” that further delineated the characters and story were protected by copyright. So, a public domain version of the characters can exist along side a protected version of those same characters.
But what elements created since 1923 were protectable? The court noted three elements that had been introduced after 1923: (1) Watson’s second wife first described in a 1924 short story; (2) Watson’s background as an athlete first described in a 1924 short story; and (3) Home’s retirement from his detective agency first described in a 1926 short story. The plaintiff claimed these elements were events not characteristics of the Holmes/Watson and there not copyrightable. Are these elements “increments of expression”?
The district court explained that the increments of expression test originated from what the Copyright Act calls derivative works. A derivative work is a work based upon one or more preexisting works. Thus, after a character has been introduced in a work any subsequent works that feature the same character are derivate works of the original. But the only things protected in a derivative work are those original additions created by the author.
The district court assumed, without deciding, that the Holmes/Watson series created on or after 1923 were derived from the pre-1923 works. It held that the new elements in those post-1923 works consisted of a new character (Watson’s second wife), a character trait (Watson’s athletic background) and a storyline (Holmes’ retirement). These elements are copyrightable.
The result: The elements of the Holmes/Watson canon published before 1923 are free for anyone to use. The three elements in the Holmes/Watson post-1923 works must be licensed for use from the Conan Doyle estate.
The real result: No writer will use the three elements identified by the court in this case in their works about Sherlock Holmes.